Citation Nr: 21027076 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 20-01 624 DATE: May 4, 2021 ORDER A 70 percent rating for posttraumatic stress disorder (PTSD) is granted. A rating of 40 percent for right upper extremity cervical radiculopathy for the period prior to December 6, 2018 is granted. A rating greater than 40 percent for right upper extremity cervical radiculopathy for the period since December 6, 2018 is denied. A rating greater than 20 percent for left upper extremity cervical radiculopathy is denied. A total disability rating based on individual unemployability (TDIU) is granted effective June 20, 2020, but no earlier. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for obstructive sleep apnea (OSA) is remanded. Service connection for hypertension is remanded. Service connection for a back disability is remanded. Service connection for a left foot disability is remanded. Service connection for a right foot disability is remanded. Service connection for headaches is remanded. Entitlement to a rating greater than 10 percent for painful motion of the right knee is remanded. Entitlement to a compensable rating for limitation of extension of the right knee is remanded. Entitlement to a rating greater than 10 percent for painful motion of the left knee is remanded. Entitlement to a compensable rating for limitation of extension of the left knee is remanded. Entitlement to a rating greater than 10 percent for diarrhea is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms have most closely approximated occupational and social impairment with deficiencies in most areas for the entire appeal period. 2. Prior to December 6, 2018, the Veteran's right upper extremity cervical radiculopathy was manifest by moderate incomplete paralysis. 3. Since December 6, 2018, the Veteran's right upper extremity cervical radiculopathy has been manifested by no more than moderate incomplete paralysis. 4. The Veteran's left upper extremity cervical radiculopathy has been manifested by no more than mild incomplete paralysis. 5. The Veteran's service-connected disabilities have precluded substantially gainful employment since June 20, 2020. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. Prior to December 6, 2018, the criteria for a 40 percent disability rating for right upper extremity cervical radiculopathy were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8613. 3. Since December 6, 2018, the criteria for a disability rating greater than 40 percent for right upper extremity cervical radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8613. 4. The criteria for a disability rating greater than 20 percent for left upper extremity cervical radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8613. 5. The criteria for entitlement to TDIU have been met since June 20, 2020. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1980 to March 1984 and from February 1987 to December 1988. The Board remanded the issues on appeal for additional development in February 2021. INCREASED RATING A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. PTSD The Veteran asserts the severity of his PTSD entitles him to a rating greater than the current 30 percent rating. The Board concludes the Veteran is entitled to a 70 percent rating, but his symptoms did not cause the level of impairment required for a disability rating of 100 percent at any point during the appeal period. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Veteran has only undergone one VA examination in July 2015. The VA examiner determined the Veteran's only symptoms were depressed mood, anxiety, and chronic sleep impairment, despite the Veteran's report of suicidal ideation in the past. The examiner opined the Veteran's PTSD resulted in mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. However, the symptoms otherwise described in the Veteran's VA treatment records, both before and since the July 2015 VA examination, are much more severe than those described by the VA examiner. The Veteran has reported near constant panic, or episodes of anxiety analogous to panic, throughout the appeal period. See, e.g., July 2014 VA Treatment Records; September 2015 Veteran Statement; May 2017 VA Treatment Record. In a May 2019 letter, the Veteran's VA physician stated the Veteran experienced waves of intense anxiety and would require frequent 15-minute breaks when they occur. In September 2019 the VA physician recommended two weeks of leave from work due to his moderate to severe symptoms, then recommended three weeks leave from work due to continued functional decline due, in part, to worsening anxiety. In May 2020, a private psychologist, Dr. C.C., Ph.D., recommended several weeks of leave from work due to increasing stress. The Veteran has also reported suicidal thoughts throughout the appeal, in one instance endorsing thoughts of cutting himself with a knife. See, e.g., July 2015 VA Examination Report; September 2015 Veteran Statement; VA Treatment Records dated in October 2015, August 2016, May 2017, January 2019. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Board notes that the Veteran expressed suicidal ideation, similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in VA treatment records and was consistently deemed at a low risk of self-harm. As discussed below, while the Board is granting the Veteran a total disability rating based on individual unemployability due to his service-connected disabilities, he is not totally socially impaired. The Veteran has consistently reported good social supports and a limited number of friends and was married for much of the appeal period; however, he was granted a divorce in October 2020. Yet, while it appears the Veteran's marriage declined, as recently as September 2020 he reported a relationship with at least one friend and a social support network. See September 2020 SSA Records. Finally, the evidence does not demonstrate the Veteran experiences gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or any analogous symptoms. In short, the preponderance of the evidence weighs in favor of assigning a 70 percent disability rating for the entire appeal period, but weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating at any point. 2. Upper Extremity Cervical Radiculopathy The Veteran contends that the current ratings for his left and right upper extremity peripheral neuropathy do not reflect the true severity of his disability. Neuritis of all radicular nerve groups is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8613. Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. Complete paralysis is rated as 90 percent for the major extremity and 80 percent for the minor extremity. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran is right-hand dominant; the right upper extremity is therefore the major extremity. Currently his right upper extremity is rated at 20 percent for mild incomplete paralysis prior to December 6, 2018 and 40 percent for moderate incomplete paralysis thereafter, and his left upper extremity is rated at 20 percent for mild incomplete paralysis for the full rating period. Regarding impairment of motor functions, the Veteran has had difficulty gripping, lifting, carrying, and typing with his right hand. See November 2015 VA Examination Report; January 2017 VA Treatment Records; May 2017 VA Treatment Records; December 2018 VA Treatment Records. The Veteran's left upper extremity displayed similar impairments, though to a lesser degree of severity. Id. In November 2015 and December 2018 VA examinations, the Veteran's right upper extremity had 4 of 5 strength; his left had 4 of 5 and 5 of 5 in the same examinations, respectively. There is no indication that the Veteran has trophic changes in either upper extremity. Regarding sensory disturbance, VA examiners in November 2015, December 2015, and December 2018 documented moderate paresthesias, dysesthesias, and numbness in the Veteran's right upper extremity; his left upper extremity displayed only mild symptoms during the same examinations. The December 2018 VA examination also documented decreased sensation in the Veteran's right upper extremity and normal sensation in his left. Regarding loss of reflexes, during the December 2018 VA examination, the Veteran's right upper extremity had hypoactive reflexes in the bicep and brachioradialis and his left had hypoactive reflexes in the triceps. Regarding pain, during the November 2015 VA examination, the Veteran reported he had to take breaks from typing at work due to pain. In December 2015, he reported moderate intermittent pain in his right upper extremity and mild intermittent pain in the left. In a January 2017 VA treatment record he reported constant pain in both upper extremities but did not indicate to what degree. By the December 2018 VA examination, the Veteran was experiencing severe constant pain in his right upper extremity and moderate intermittent pain in his left. The December 2018 VA examiner found the Veteran had 1cm of muscle atrophy in his right upper extremity located 6cm below the elbow. There are no indications of muscle atrophy in his left upper extremity. Regarding complete paralysis, none of the symptoms of complete paralysis are demonstrated in the medical evidence, nor has the Veteran complained of similar symptoms. Although the Veteran's disability is rated based on the overall functional loss resulting from his symptoms and is not dictated solely by the determinations of severity given by VA examiners, it is notable that both the December 2015 and December 2018 VA examiners evaluated the Veteran's right upper extremity cervical radiculopathy as moderate and the left upper extremity as mild. Based on the above, the Board finds that the Veteran's right upper extremity cervical radiculopathy disability is primarily manifest by moderate sensory disturbance and pain with mild impairment of strength and motor function and muscle atrophy, but is against a finding that the disability is manifest by trophic changes, loss of reflexes, or complete paralysis. The Board also finds the Veteran's left upper extremity cervical radiculopathy is primarily manifest by sensory disturbance and pain and is against a finding that the disability is manifest by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. The Board finds that the level of impairment of the right upper extremity has been most analogous to moderate incomplete paralysis for the entire rating period. The Veteran has made subjective reports of moderate to severe pain and moderate sensory disturbance and motor function, and VA examiners have evaluated the Veteran's disability as moderate throughout the appeal period. See 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves;" Miller, 28 Vet. App. 376 at 380. The Board finds that the level of impairment of the left upper extremity has been most analogous to mild incomplete paralysis the entire rating period. The Veteran has made subjective reports of mild to moderate pain and only mild sensory disturbance, and VA examiners have evaluated the Veteran's disability as mild. Id. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In sum, the Veteran is entitled to a 40 percent disability rating for his right upper extremity for the period prior to December 6, 2018, but is not entitled to a rating higher than 40 percent thereafter, and is not entitled to a rating higher than 20 percent for his left upper extremity for any portion of the appeal period. In denying ratings greater than 40 percent for the right upper extremity and 20 percent for the left upper extremity cervical radiculopathy, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7 3. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2017). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase "unable to secure and follow a substantially gainful occupation" under 38 C.F.R. § 4.16 (b). The Court defined the term to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component, which is pertinent in this case, includes consideration of: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As of this decision, the Veteran has met the schedular criteria for the entire appeal period. See 38 C.F.R. § 4.16(a). But the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment for that period. See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran last worked as a peer support specialist, counseling other Veterans with mental health issues in group and individual sessions, from December 2013 until he resigned from the position on June 19, 2020. See June 2020 Standard Form 50; September 2020 SSA Records. Prior to that, he worked as a records contractor, processing requests for classified documents for a federal agency. See September 2020 SSA Records. As documented above, the Veteran's upper extremity cervical radiculopathy has resulted in difficulty typing and has required him to take regular breaks due to pain in his hands from work on a computer, thus limiting his ability to maintain employment that requires extended work typing or completing other tasks requiring manual dexterity. And while Veteran has asserted that his knee disabilities have worsened and the Board is remanding his claims for increased ratings, it is notable that as far back as November 2015 a VA examiner opined that the Veteran experienced stiffness and throbbing in his knees after prolonged sitting that required the Veteran to take frequent breaks. Additionally, the symptoms of the Veteran's PTSD have severely impaired his ability to work in a shared office space. In letters dated in May 2019, September 2019, and November 2019, the Veteran's VA physician reported the Veteran was experiencing worsening anxiety, which was aggravated by his experiences in the workplace, explaining that shared workspace was a significant stressor. The physician recommended several weeks of leave from work due to the Veteran's symptoms and stated the Veteran would need frequent 15-minute breaks due to intense waves of anxiety. The VA physician's concerns were echoed by a private psychologist, Dr. C.C., Ph.D., in a May 2020 letter. Given the reports of the VA physician, Dr. C.C., and the Veteran's documented difficulty with pain resulting from typing and prolonged sitting necessitating very frequent breaks, and considering the Veteran's history, education, skill, and training along with the evidence of record, the Board finds that the Veteran's service-connected disabilities have rendered it impossible for him to obtain and maintain a substantially gainful occupation since June 20, 2020, the day after his resignation from his most recent employment. Prior to that date, the Veteran had been substantially gainfully employed full time and while his service-connected disabilities interfered with his employment, they did not render it impossible for him to maintain employment. REASONS FOR REMAND 1. Service Connection for Bilateral Hearing Loss The November 2015 VA examiner found the Veteran did not have hearing loss for VA purposes. But, while Puretone threshold testing did not show significant hearing loss, the Veteran's speech discrimination score was only 92 percent bilaterally, indicating some hearing loss for VA purposes. The examiner's etiological opinion only addressed the Veteran's hearing thresholds at separation, and not his speech discrimination deficit. A remand for an additional VA opinion is therefore necessary. 2. Service Connection for OSA A July 2015 VA examiner opined the Veteran's OSA was not caused by PTSD. However, the examiner failed to provide an opinion on whether OSA had been worsened by PTSD and did not provide an opinion on direct service connection, despite statements in August 2014 from the Veteran and his former spouse that the Veteran began snoring in while he was still in active duty service. An additional VA opinion is necessary. 3. Service Connection for Hypertension The Veteran has a diagnosis of hypertension and has asserted the disability is secondary to his PTSD. But the Veteran has not been afforded a VA examination. As such, the claims must be remanded for a VA examination. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Service Connection for Headaches A July 2017 VA examiner opined that the Veteran did not have a chronic headache condition, then opined there was no medical relationship between headaches and degenerative arthritis of the spine, but gave no reasoning to support the opinion. The determination the Veteran did not have a chronic headache condition is curious because the examiner also noted the Veteran had been treated for debilitating headaches associated with his neck pain, was followed by neurology, and took 800mg of ibuprofen twice daily. The examination and the associated opinion are inadequate and a remand for an additional opinion is necessary. 5. Service Connection for a Low Back Disorder A December 2018 VA examiner diagnosed the Veteran with degenerative arthritis of the thoracolumbar spine but failed to provide an etiological opinion. A remand for an etiological opinion is necessary. 6. Service Connection for Bilateral Foot Disabilities A December 2018 VA examiner diagnosed the Veteran with bilateral sciatic nerve radiculopathy, which the Veteran asserts is caused by his claimed back disability. Because a decision on the remanded issue of service connection for a low back disability could significantly impact a decision on the issues of service connection for bilateral foot disabilities, which the Veteran has described as numbness and tingling, the issues are inextricably intertwined, and a remand of the claims is required. 7. Increased Ratings for Bilateral Knee Disabilities The Veteran asserts his bilateral knee disabilities have increased in severity since he was last examined by VA in November 2015. VA treatment records from April 2016, January 2017, and December 2018 show some indication that the Veteran's disabilities have worsened. The Veteran must therefore be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral knee disabilities. 8. Increased Rating for Diarrhea The Veteran was last afforded a VA examination in November 2015. While the Veteran has not explicitly asserted his symptoms have worsened since that time, the Board is unable to ascertain the severity of his condition because, although the VA examiner noted a diagnosis of diarrhea as secondary to the Veteran's medication, later in the examination report the examiner indicated the Veteran did not have any symptoms of diarrhea and gave no description of the severity of the condition. As such, an additional VA examination is necessary. The matters are REMANDED for the following action: 1. Obtain an additional opinion from an appropriate clinician to assess the nature of the Veteran's bilateral hearing loss. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following inquiries with an explicit opinion: Is bilateral hearing loss specifically any deficit in speech discrimination at least as likely as not related to service, including any in-service noise exposure the Veteran experienced while serving as a mechanic? 2. Obtain an additional opinion from an appropriate clinician to assess the nature of the Veteran's obstructive sleep apnea. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following inquiries with an explicit opinion: Is obstructive sleep apnea at least as likely as not related to service? The examiner must explicitly consider the August 2014 assertions of the Veteran and his former spouse that the Veteran began snoring while he was in service. Is obstructive sleep apnea at least as likely as not proximately due to PTSD? Is obstructive sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by PTSD? 3. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is hypertension at least as likely as not proximately due to PTSD? Is hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by PTSD? 4. Obtain an additional opinion from an appropriate clinician to assess the nature of the Veteran's headaches. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following inquiries with an explicit opinion: Are the Veteran's headaches at least as likely as not proximately due to the Veteran's cervical spine disability and/or PTSD? Are the Veteran's headaches at least as likely as not aggravated, i.e., worsened beyond their natural progression, by the Veteran's cervical spine disability and/or PTSD? In offering an opinion, the examiner should discuss the medical articles cited in the January 2020 statement by the Veteran's representative. 5. Obtain an additional opinion from an appropriate clinician to assess the nature and etiology of the Veteran's low back disability. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following inquiries with an explicit opinion: Is the Veteran's low back disability at least as likely as not related to service, including his in-service motor vehicle accident? Is the Veteran's low back disability at least as likely as not proximately due to his cervical spine disability, including any overcompensation or adjustments resulting from the cervical spine disability? Is the Veteran's low back disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his cervical spine disability, including any overcompensation or adjustments resulting from the cervical spine disability? 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing and must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diarrhea. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (Continued on the next page) 8. Then readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mine, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED